The Illinois
appellate court recently affirmed the circuit court’s finding of nonpaternity
based on DNA testing even though respondent had signed a voluntary
acknowledgment of paternity (VAP) and the birth certificate.The court held that the minor, by and through
the guardian ad litem, had standing to challenge the paternity of the
respondent because the child was not in privity with either party when they
executed VAP.The case is In re M.M ,
No. 1-09-3468 (May 21, 2010, 1st Div.).Read the opinion here.

The Center for Reproductive Rights – Columbia Law School Fellowship (“CRR-CLS Fellowship”) is a two-year, post-graduate fellowship offered by the Center for Reproductive Rights (“the Center”) and Columbia Law School (“the Law School”). The Fellowship is designed to prepare recent law school graduates for legal academic careers, with a focus on reproductive health and human and human rights. Fellows will beaffiliated with the Center and the Law School and will participate in the intellectual life of both programs.

The CRR-CLS Fellowship is a full-time, residential fellowship for up to two full years starting in July 2010. The Fellow will be a member of the community of graduate fellows at the Law School and will be integrated into the legal and policy work of the Center and will have work space at both locations. The Fellow will also have access tolaw school facilities, including the library and on-line research resources, and faculty events. It is expected that the Fellow will work closely with an assigned Law School faculty mentor.

The Missouri Court of Appeals affirmed a trial court's dismissal of an action claiming extrinsic paternity fraud regarding children alleged in a 2005 divorce judgment to be born of the marriage. However, the court found that the dismissal could not properly be based on the doctrines of res judicata and collateral estoppel.

The court reasoned that extrinsic fraud may be a basis for reopening a judgment, but went on to note that the ex-husband's claim here — Wife's false averments in a divorce petition and her sworn testimony in court regarding his paternity of their two children — was intrinsic fraud only.

Family Law Prof Blog previously drew your attention to an interesting op-ed by two Family Law Prof colleagues, June Carbone of
University of Missouri-Kansas City and Naomi Cahn of George Washington
University, in STLtoday.com, from St. Louis. (September 5, 2008).

Two family-law scholars, Naomi Cahn, of George Washington University,
and June Carbone, of the University of Missouri at Kansas City, are
writing a book on the subject, and they argue that “red families” and
“blue families” are “living different lives, with different moral
imperatives.” (They emphasize that the Republican-Democrat divide is
less important than the higher concentration of “moral-values voters”
in red states.) In 2004, the states with the highest divorce rates were
Nevada, Arkansas, Wyoming, Idaho, and West Virginia (all red states in
the 2004 election); those with the lowest were Illinois, Massachusetts,
Iowa, Minnesota, and New Jersey. The highest teen-pregnancy rates were
in Nevada, Arizona, Mississippi, New Mexico, and Texas (all red); the
lowest were in North Dakota, Vermont, New Hampshire, Minnesota, and
Maine (blue except for North Dakota). “The ‘blue states’ of the
Northeast and Mid-Atlantic have lower teen birthrates, higher use of
abortion, and lower percentages of teen births within marriage,” Cahn
and Carbone observe. They also note that people start families earlier
in red states—in part because they are more inclined to deal with an
unplanned pregnancy by marrying rather than by seeking an abortion.

It's great to see Family Law Profs being part of this important conversation!

The political parties are in the process of drafting their national party platforms for the 2008 election and, as expected, there is some attention to family law issues.

The draft 2008 Democratic National Platform is interesting both for what it says and what it does not say. A section on "fatherhood" states that "too many fathers are missing." The party supports "removing tax penalties on married families and expanding maternity and paternity benefits," as well as rewarding those "who are responsibly supporting their children by giving them a tax credit" and will "crack down on men who avoid child support payments" and "ensure that payments go directly to families instead of bureaucracies." (page 44 lines 34-44). There is a section on "empowering families" with an extensive discussion of policies on health care, employment, "work and family," and women. Of particular interest is a pledge to "expand the Family and Medical Leave Act" to "enable workers to take leave to care for an elderly parent, address domestic violence, or attend a parent-teacher conference," and to work with states to make leave paid rather than unpaid. (page 10 lines 31-35). In a subsection entitled "Choice" the platform provides: "The Democratic Party strongly and unequivocally supports Roe v. Wade and a woman's right to choose a safe and legal abortion, regardless of ability to pay, and we oppose any and all efforts to weaken or undermine that right." There is also strong support for "access to affordable family planning services and comprehensive age-appropriate sex education," and a mention of "caring adoption programs." (page 45 line 19-31). There is also this single line: "We oppose the Defense of Marriage Act and all attempts to use this issue to divide us." (page 47 lines 8-9).

The draft of the 2008 Democratic National Platform, in pdf format from CNN/TIME, is available here.

The Republican National Platform Committee is apparently still in progress - - - the committee is soliciting input for its 2008 platform here.

The draft of the 2008 Green Party Platform includes a section on youth, a call for equality regardless of sexual orientation and gender identity in civil marriage and child custody, a section on protecting abortion and contraception (specifically including the "morning after pill") and is available here.

The 2008 Constitution Party Platform calls for to the government to "secure and to safeguard the lives of the pre-born." The platform opposes "government
funding of 'partner' benefits for unmarried individuals," "any legal recognition of homosexual unions," and "efforts to legalize adoption of children by
homosexual singles or couples," and is available here.

The New Hampshire Supreme Court, interpreting the word "parent" in its custody statute, found that a trial court erred in dismissing a man's petition for parental rights and responsibilities of the six-year-old child he had helped raise since birth, despite the fact that the DNA testing ordered at mother's request showed that he was not the biological father. The man had signed an acknowledgment of paternity at the hospital when the child was born and later had a child support order entered against him. The New Hampshire Court held that this was sufficient to make his a parent entitled to bring an action for parenting time.

In the Matter of J.B. and J.G., (New Hampshire Sup. Ct. August 6, 2008)Read the opinion online (last visited August 14, 2008 bgf)

The Supreme Court of Wyoming, in a case of first impression, interprets its state paternity statute regarding the impact of a DNA test excluding paternity. The disputed provision reads: "If the scientific evidence resulting from the genetic tests conclusively shows that the defendant could not have been the father, the action shall be dismissed." In this case, father submitted a genetic test excluding his paternity but took no further action. Over a year later, the laboratory contacted the court to notify it that it had discovered an error in the testing -- it had switched samples. When it re-ran the test with the correct samples, defendant was established to have a 99.99% probability of paternity. The court then ordered additional genetic testing, which also pointed to defendant as father.

Father argued that the court lacked any authority to order further testing because the statute required the court to sua sponte dismiss the paternity action once the first test had been submitted excluding him as father. The court found otherwise:

The cases relied upon by RK do not, however, establish that the plain language of Wyo. Stat. Ann. § 14-2-111(f) mandates dismissal in the absence of an appropriate motion. The statute does not establish a timeframe for dismissal, nor does the statute require the district court to dismiss paternity cases on its own initiative. There was nothing to prevent RK from filing a motion to dismiss the paternity action, but RK did not file such a motion until after the court had received information undermining the reliability of the Test 1 results. Stated differently, at the time RK moved for dismissal, the genetic test had not "conclusively" established that RK was not the father. We also note that there is no requirement in the statute that dismissal be with prejudice. In the absence of a dismissal with prejudice, the State could have re-filed the action in August 1994 when the laboratory's error became known. In sum, RK asks this Court to read far more into the statute than is justified by its plain text. The court's failure to dismiss the action, sua sponte, did not violate the plain language of the statute. Accordingly, the paternity action was still pending at the time the laboratory revealed its mistake.

Father also argued that the trial court had applied the paternity statute in effect at the time of the decision rather than at the time the action was filed. The earlier statute had been more generous in the range of evidence permissible to rebut a paternity test. Thus, father argued, the trial court improperly excluded testimony of an expert witness. The Supreme Court agreed that the trial court erred in this exclusion but found it harmless error in the context of the two subsequent genetic tests establishing father's paternity.

A three-judge panel of the 6th U.S. Circuit Court of Appeals upheld a trial court's dismissal of a constitutional challenge to paternity and child support laws. The suit was brought by Father who claimed that he should not be responsible for child support when Mother had represented that she didn't want to have a child and assured him repeatedly she couldn't get pregnant. Father argued that Michigan's paternity laws violated the U.S. Constitution's Equal Protection Clause because a man does not have a similar choice as does a pregnant woman regarding abortion, adoption or raising a child.

The court found that Michigan Paternity Act does not affect any of Father’s fundamental rights because "it is not a fundamental right of any parent, male or female, to sever his or her financial responsibilities to the child after the child is born." The court further noted that it did not need to apply intermediate scrutiny because the Michigan Paternity Act and other statutes that impose the obligation of support are gender neutral. Finally, the court found that the Michigan Paternity Act withstood rational basis review because "the means that the statute uses to achieve this end–requiring support from the legal parents, and determining legal fatherhood based on the biological fatherhood–is substantially, let alone rationally, related to this legitimate, and probably important, government purpose."

The court declined to award fees for a frivolous appeal however. "While we find [Father’s} challenge to the Michigan Paternity Act to lack support in our equal protection jurisprudence, we do not consider his appeal of the district court’s decision to be frivolous or worthy of imposing sanctions. Admittedly, our precedent ... suggests that [Father's] claim should be viewed as “wholly without merit.”... However, the court noted that the claim in this case was brought under a legal theory that had not yet been rejected by the court.

In a decision that clarified a number of issues that had split the Florida appellate courts, the Florida Supreme Court has held that an unmarried father's parental rights may not be terminated based solely on failure to register in the putative father registry. "We hold that the rights of an unmarried biological father in relation to the child, who is known or identified by the mother as the potential father and who is locatable by diligent search, may be terminated based on his failure to file a claim with the Florida Putative Father Registry only if the father was served with notice under section 63.062(3)(a), Florida Statutes (2005), and he fails to comply with the requirements of that subsection within the thirty-day period."

The court did not eliminate the requirement that unmarried father's register in order to prevent the termination of parental rights. "The entire statutory scheme would be frustrated, including the interest in prompt adoption proceedings, if an unmarried biological father could avoid having his parental rights terminated prior to an adoption, even though he failed to comply with the requirements of section 63.062(2). In fact, section 63.054(1) contemplates that the termination of parental rights proceedings will operate against unmarried biological fathers in order to promote finality and certainty by providing that an unmarried biological father must file a claim of paternity with the Registry."

However, the court went on to analyze the notice an adoption agency must provide an unmarried biological father before the statutory registration requirement attaches. The court's statutory interpretation side-stepped constitutional challenges to the paternity registry.

The court noted that registration alone is insufficient to prevent termination of parental rights of unmarried fathers. The fathers must also file an affidavit of commitment in the court in order to establish and preserve his right to be made a party to any proceeding to terminate parental rights and to establish that his consent is required to the proposed adoption.

The Utah Supreme Court has held that individuals who have no biological or legal relationship with a child have no standing to seek visitation. Reversing the district court's decision that a former domestic partner could assert a claim to visitation under the common law doctrine of in loco parentis, the court held that Utah's doctrine of in loco parentis does not independently grant standing to individuals to seek visitation after the in loco parentis relationship has ended.

The couple in the dispute had entered into a civil union in Vermont and, after one bore a child conceived through artificial insemination, they were both obtain co-guardianship of the child and raised the child together until their relationship dissolved two years later. The court emphasized the temporary nature of the in loco parentis doctrine, concluding that it may be terminated by either the legal parent, the parent standing in loco parentis, or the child. The court further refused to expand the doctrine to recognize a new doctrine of de-facto or psychological parent, finding that a legislative task beyond the competence or power of the judiciary and in conflict with legislative policy.

Chief Justice Durham dissented, emphasizing that there had been no legislative pronouncements at all on the issue of surrogate parent standing to seek visitation or custody and finding the extension of such a doctrine to be an appropriate exercise of the court's power to adapt the common law to changing social realities.

Legislation is working its way through the Colorado legislature that would make it harder for Colorado to force people to pay child support to children DNA tests have proven aren't theirs. The text of the bill. See the CBS4Denver website for a news video on the bill.

According to the Kansas City Star, this week a bill was introduced into the MIssouri legislature allowing DNA evidence to disestablish paternity after the current one-year limitations period.

See this Time magazine article on the national movement to pass similar legislation.

The Florida court again reaffirmed its holding that a failure to file with the putative father registry is not a basis for terminating a biological father's parental rights in an adoption proceeding. A concurring opinion by Judge Canady questions the completeness of the court's analysis in the several cases establishing this precedent, noting that the putatitve father act expressly provides that:

"An unmarried biological father who does not comply with [the act] is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required."

The California Court of Appeals interprets its probate code to provide that "a child born out of wedlock to establish a father-child relationship for intestate succession purposes by providing clear and convincing evidence that the father "has openly held out the child as his own." Here, the father was aware he had fathered a son and had offered to marry the mother who refused and married another man who had raised the son as his own. When the son was 18 years old he learned of his biological father's identity and established a relationship with the father's family. Despite the fact that father admitted he was the biological father, was not interested in establishing a relationship with the son and limited his contact with him. The court held that father's acknowledgement to family members and others that he was the biological father was sufficient to establish his paternity under the probate code -- neither a desire for a relationship with the son nor any formal written acknowledgment of paternity were required.

"Here’s an unpleasant figure for a man to ponder: 10 percent of all children conceived in the context of a marriage (or a less formal heterosexual pairing) have been fathered by someone from outside the couple. “Dad” has been cuckolded. Or so many biologists and anthropologists have been saying for decades.

But in the June issue of Current Anthropology, Kermyt G. Anderson, a professor of anthropology at the University of Oklahoma, cast serious doubt on the 10 percent figure. Girlfriends and wives, it seems, are less worthy of distrust than many scientists have thought. “The upshot,” Anderson says, “is that you shouldn’t be worried, if you are pretty sure the kid is yours.”

Anderson’s was a meta-study: he examined every paper or reference he could locate that touched on the topic. First he identified 22 studies, dating back to 1949, in which men with few or no doubts about their paternity learned that they weren’t related to one of “their” kids. These studies were mostly designed to explore genetically linked traits in fathers and children. Presumably, if you or your wife suspected you were unrelated to a child, you’d find an excuse not to take part in a genetic study like that, so Anderson determined that these men had high paternity confidence. Collectively in these studies, only 1.7 percent of men learned they were not the true fathers." By Christopher Shea, N.Y. Times Link to Article (last visited 12-11-06 NVS)

The Indiana Court of Appeals reversedd a trial court that had granted a name change, allowing mother to change her child's last name from her own to that of the child's stepfather, over the objection of father, who had never been married to mother but had been adjudicated father in a paternity action. The court reversed on the grounds that the trial court had erred in sequestering father as a witness during the name change proceeding. "Although an action to change a person's name is not an adversarial proceeding in the traditional sense, Father is a necessary party who had a right to participate in the proceeding. It is reversible error to extend the separation of witnesses to those who have a substantial interest in the subject matter."

In dicta, the court also noted that Indiana statutes provide a presumption in favor of a parent of a minor child who has been making support payments and fulfilling other duties in accordance with a decree and objects to the proposed name change of the child. Mother had argued that the presumption should not apply in this case because the child had never had Father's last name, but the court disagreed, noting that if the court found as a matter of fact that Father fulfilled the requirements of the statute, the presumption would apply.

"Larry Birkhead has filed a paternity suit to prove he’s the daddy of Anna Nicole Smith’s new baby daughter. The Louisville native also has eschewed the ongoing war of words he was forging on his Web site by hiring a publicity firm, which sent out a statement confirming celeb attorney Debra Opri has filed court papers on his behalf." By Angie Fenton, Courier-Journal Link to Article (last visited 10-4-06 NVS)

It's definitely a teachable moment. I've had no less than five students this week ask me about the two men who are claiming paternity of Ann Nicole Smith's child. In case you're getting questions, here's a link to the story. (last visited October 4, 2006). I've been sending students to the Uniform Parentage Act for their answers. Cornell's Legal Information Institute has the full text of the statute and links to the state versions.

A 22-year-old son brought an action for paternity and retroactive child support against his putative father. Father claims res judicata precludes the suit because in 1983, Mother had dismissed with prejudice her own paternity action pursuant to a compromise with putative father. The trial court rejected the res judicata argument, and the Ohio Court of Appeals affirmed. The court noted that the son was not represented by counsel in Mother's action and the guardian ad litem appointed for him in that action signed the settlement as to form only and the court did not obtain the approval of the GAL as to the substance of the agreement. As children have separate interests in a determination of paternity beyond the right to collect support, the court applied the general rule that

a minor child is not barred from instituting a later action to determine paternity when a prior action brought in his name has reached judgment through a stipulated agreement.... Under these circumstances, this Court finds that [son's] interests were neither determined nor considered and his rights were not adequately protected, so that he did not have a full and fair opportunity to litigate the issues pending before the juvenile court in 1983. Because [son] was not accorded his due process rights in regard to the 1983 compromise agreement, his instant claims could not be barred by the doctrine of res judicata.

The Michigan Supreme Court has ruled that a man lacked standing to bring a paternity action, even though he was listed as the father on a child's birth certificate and in an affidavit of parentage executed in the hospital and then helped raise the child for more than four years until he and Mother separated. Mother was married to another man when she became pregnant and concealed the pregnancy during the divorce. Michigan law provides standing to bring paternity actions only for children born out of wedlock or for whom a court has determined by clear and convincing evidence that the child is not issue of the marriage. In Mother's default judgment of divorce, the court stated that it appears that “no children were born of this marriage and none are expected.” The Michigan Supreme Court, in a 4-3 decision, held that the plaintiff did not have standing under the Paternity Act "because the default judgment is not clear and convincing evidence that the child was not an issue of the marriage."

The dissenting opinions had strong words for the majority:

In this case, the majority again evidences a rigid adherence to woodenstrictures such as the presumption of legitimacy even where, as here, the purposesof the presumption are not served. The majority has exhibited a consistent patternof ruling against putative fathers who seek to exercise their due process rights withrespect to children they claim as their own. (dissent by Kelly, J.)

In adopting defendant’s position that the divorce judgment was insufficientto establish that her child was born out of wedlock, the majority renders a defaultjudgment in this case meaningless; it condones and encourages gamesmanship bya party to a child custody proceeding; and it allows a party to prevail, in significantpart, because of that party’s own delinquency in failing to participate in an earlierjudicial proceeding. (dissent by Markman, J.)

What is a father? Today, a judge in Hudson County is expected to issue his legal opinion on fatherhood in the case of a Staten Island man trying to claim half of his late daughter's inheritance. The case involves a New Jersey law that divides the estate of someone who dies without a will between the person's parents if there are no children or other descendants. The attorney for the deceased woman's mother believes the judge's ruling will break legal ground in defining and interpreting parental inheritance. The legal case hinges on whether the Staten Island man, Ruben Martinez, should still be considered the woman's legal parent even though he admits in court papers that he was not very involved in his daughter's upbringing and did not pay child support.

Read more of the article by Rudy Larini from New Jersey's Star-Ledger (last visited July 25, 2006 bgf)